Criminal convictions may lead to disqualifications, such as a driving ban following a road traffic offence. This Communication clarifies the concept of disqualification and summarises existing European law on the subject. The Commission outlines what steps could be taken to make disqualifications more effective in the European Union (EU).

ACT

Communication from the Commission of 21 February 2006 to the Council and the European Parliament: Disqualifications arising from criminal convictions in the European Union [COM(2006) 73 final - Not published in the Official Journal].

SUMMARY

The Communication clarifies the concept of disqualification, presents a round-up of the relevant legislation at European level and outlines the measures that could be taken to make disqualifications more effective. It concerns only disqualifications resulting from a criminal conviction and not, for example, measures imposed during a trial or measures imposed for preventive purposes on persons who cannot be held criminally liable.

Definition of disqualifications arising from a criminal conviction

A person may be deprived of certain rights following a criminal conviction. This may include, for example, a driving ban, prohibition from residing in a particular area or deprivation of civil rights. The disqualification is a penalty ordered by the court, either as an addition to the principal penalty or as an alternative penalty if ordered in place of one or more principal penalties. Where appropriate, it can be automatically imposed as a consequence of the principal penalty and thus need not be ordered by the court (additional penalty). A disqualification may be ordered in administrative or disciplinary proceedings arising as a result of a criminal conviction.

Disqualifications can apply to natural persons or legal persons such as firms or associations. However, not all Member States recognise the criminal liability of legal persons. The Commission addresses this question in its Green Paper on sanctions [PDF], which illustrates the differences in Member States' legislation on sanctions and disqualifications.

Approximating legislation in the Member States

Community instruments adopted in this connection aim to approximate national legislation. One of these is Framework Decision 2004/68/JHA on combating sexual exploitation of children and child pornography. Under this Decision, Member States are required to take the necessary measures to ensure that a person convicted of such an offence is prevented from exercising professional activities related to the supervision of children. The Communication also refers to Framework Decision 2003/568/JHA on combating corruption in the private sector, the legislation concerning the procedures for the award of public contracts and aimed at combating corruption and organised crime, and other EC directives applying to the financial sector.

The instruments concerning the effect that a disqualification measure or a conviction ordered in one Member State is likely to have in the other Member States can be divided into three categories: instruments allowing partial mutual recognition, instruments which are not in force or which have been ratified by only a limited number of Member States, and non-mandatory resolutions.

The instruments allowing partial mutual recognition include a number of directives that deal directly with the recognition of a disqualification ordered in another Member State, such as the Directives on the exercise of the right to vote and stand for election at municipal and European elections or the Directive on the mutual recognition of expulsion decisions.

Instruments which are not in force or which have been ratified by only a limited number of Member States include:

the Danish initiative with a view to adopting a Council Decision on increasing cooperation between European Union Member States with regard to disqualifications [Procedure CNS/2002/0820];

The Commission notes that there are few instruments that require the Member States to include professional disqualifications among the penalties available on conviction or to attach disqualification effects to certain convictions. It regrets the lack of any genuine information-exchange systems among the Member States.

Making disqualifications more effective in the European Union

In order to make disqualifications more effective, the Commission envisages that conviction for specific offences should lead to automatic disqualification from exercising certain activities. The adoption of legislation is likely to require that the activities and professions concerned be defined, minimum harmonisation of the offences themselves and harmonisation of the duration of the disqualification itself, in order to avoid potential discrimination. The Commission feels that this regulatory approach might prove inappropriate for activities that are not necessarily EU-wide.

In certain cases, the effect of a national disqualification should be extended to the whole EU territory. Mutual recognition is the cornerstone of an area of freedom, security and justice; however, extending the territorial effect of disqualifications could be seen as aggravating the sanction and raises the issue of the rights of the individual concerned. Furthermore, national criminal law and its penalties vary within the European Union. Extending the effect of a disqualification measure ordered in one Member State throughout the Union could be opposed by a Member State which does not impose this type of sanction for the offence in question.

The Commission favours the mutual recognition of disqualifications in areas where a common basis already exists among the Member States and where there is therefore a sufficient degree of homogeneity as regards sanctions. This is the case where the disqualification already exists in all the Member States for a specific category of offence and where a legal instrument specifically requires this type of penalty to be provided for in all Member States for certain types of offence. However, if disqualification is only one out of a possible range of penalties for the conduct that the legal instrument requires to be treated as a criminal offence, there is no guarantee that a common basis will exist.

Improving the flow of information

The Commission believes that improving the flow of information among the Member States is a prerequisite for making disqualifications more effective at European level. Several measures have already been adopted, such as the White Paper analysing the main difficulties in exchanging information on convictions [PDF]. Nevertheless, the disparities in the Member States as regards disqualifications and the widely differing rules on the keeping of national registers make the exchange of information difficult.

The Commission envisages a comprehensive exchange of information on the disqualifications ordered in a Member State:

by a court following criminal conviction;

flowing automatically from a conviction in that same Member State;

following a criminal conviction, regardless of the authority ordering them, where the procedure gives the same guarantees as a criminal procedure;

on legal persons for offences or infringements which would have been criminal offences if they had been committed by a natural person and for which a legal person can be held liable (criminally or administratively) in all the Member States.

The Commission concludes that the existence of a criminal conviction triggering a disqualification is the common denominator among the Member States. It wishes to improve the flow of information on convictions and will pursue the work already begun. Concerning the mutual recognition of disqualifications, the Commission favours a "sectoral" approach, in sectors where a common basis exists between the Member States, e.g. driving disqualifications and disqualification from working with children.